The Plaintiff, Cindy Walsh who serves as her own attorney files this reply in Response to Anthony Brown's 'Motion to Dismiss'.

Plaintiff respectfully opposes the defendants' motion to dismiss pursuant to MD Rule 2-322(b)(2). To dismiss without trial would be a huge injustice for the plaintiff and without warrant.

In Response to Defendant's Motion to Dismiss

A judge is required to show a little lenience toward a Pro Se litigant: Hayes vs Kerner and children

Non-Lawyer pro se litigants not to be held to same standards as a practicing lawyer

Many pro se litigants will use this in their pleadings; "Pleadings in thiscase are being filed by Plaintiff In Propria Persona, wherein pleadings areto be considered without regard to technicalities. Propria, pleadings arenot to be held to the same high standards of perfection as practicinglawyers. See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11thCir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See InRe: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991)."

In Puckett v. Cox, it was held that a pro-se pleading requires lessstringent reading than one drafted by a lawyer (456 F2d 233 (1972 SixthCircuit USCA). Justice Black in Conley v. Gibson, 355 U.S. 41 at 48 (1957)"The Federal Rules rejects the approach that pleading is a game of skill inwhich one misstep by counsel may be decisive to the outcome and accept theprinciple that the purpose of pleading is to facilitate a proper decision onthe merits." According to Rule 8(f) FRCP and the State Court rule whichholds that all pleadings shall be construed to do substantial justice."

Defense against dismissal of complaint under Rule 12-B

There is legal sufficiency to show Plaintiff is entitled to relief under hisComplaint. A Complaint should not be dismissed for failure to state a claimunless it appears beyond a doubt that the Plaintiff can prove no set offacts in support of his claim which would entitle him to relief. See Conleyv. Gibson, 355 U.S. 41, 45-46 (1957) also Neitzke v. Williams, 109 S. Ct.1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on ajudge's disbelief of a complaint's factual allegations. In applying theConley standard, the Court will "accept the truth of the well-pleadedfactual allegations of the Complaint."

Statement of Facts and Claims

The US Constitution and Maryland Constitution guarantees the rights of citizens to free and fair elections. This includes the rights of citizens to run for elected office and the rights of citizens to go to the polls educated on the issues and candidates in an election race so they may cast an intelligent vote. The FCC and IRS regulate businesses under their venue and have laws that protect elections and how businesses may participate in elections. These laws state that if a business decides to participate in elections it must do no damage to one candidate or oppose a candidate and it must educate voters on the issues and candidates in an election race excluding no candidate because of platform. These laws protect Federal, State, and local elections. This case does not address a third party candidate; it addresses a candidate in a Democratic Primary and has the protection of major party status. Cindy Walsh for Governor of Maryland was systematically excluded from election coverage by Maryland media and election events by major 501c3 organizations and this exclusion was complete in the City of Baltimore. The plaintiff will prove that widespread election irregularities changed the results of the Democratic Primary. It is only the proof that the results were changed and not the degree or with a burden of 'without a doubt' that must be proven in order to invalidate the results of the election. Candidates Anthony Brown, Doug Gansler, and Heather Mizeur acting as 501c3 political committees willfully, deliberately, and with malice excluded Cindy Walsh from planned and executed primary forums damaging her campaign. They committed violations of False Statements by changing the Maryland Board of Election list of Democratic candidates for Governor with this exclusion. They violated oaths of office to uphold Maryland and US Constitution especially as regards FCC and IRS election law. All should be disqualified from the primary election and Anthony Brown disqualified as winner of the Democratic Primary for Governor of Maryland. These violations changed the results of the Democratic Primary election for Governor of Maryland and denied the citizens of Maryland the information on a campaign platform that in all probability included issues valuable to their decision to vote and for whom to vote. This case claims that Bobbie Mack and Linda Lamone of the Maryland Board of Elections and Doug Gansler of the Maryland Attorney General’s Office willfully and deliberately failed in their duties of oversight and enforcement of Maryland and Federal Election Law and refused to respond to plaintiff’s requests for relief from said election irregularities. Rather, they allowed them to continue creating the conditions now necessitating the invalidation of the election results in the Democratic Primary for Governor of Maryland. This case claims as well that Democratic Primary candidates Anthony Brown, Doug Gansler, and Heather Mizeur and their campaign committees knowingly violated election law and ignored and participated in election venues that violated election law.

'The cause of action is often stated in the form of a syllogism, a form of deductive reasoning that begins with a major premise (the applicable Rule of Law), proceeds to a minor premise (the facts that gave rise to the claim), and ends with a conclusion'.

Cindy Walsh begins her complaint with a major premise (the applicable Rule of Law) by stating the source of widespread election irregularities-----failure of media outlets and non-profit organizations to meet FCC and IRS regulations regarding their participation in elections. I identify these regulations and how these businesses failed to meet their obligations followed the body of the complaint with a list of the worst offending organizations. I include the actual statutes in this motion. The complaint includes a draft of the Federal Court lawsuit that very clearly outlines the major premise of this case . The statement of laws violated cannot be any clearer and the number of laws violated and the number of venues alleged doing this is pervasive. The evidence will prove the claim that the irregularities changed the results of the election and the actions of the defendants and businesses involved were deliberate, willful, and with extreme malice. To dismiss this case before the plaintiff has a day in court would be a huge injustice.

Cindy Walsh tied the law to the action of candidates as they themselves planned debates and as they participated in forums sponsored by the businesses listed with detailing her being completely censured throughout the Democratic Primary. This is the minor premise (the facts that gave rise to the claim). The conclusion describes what will become the demand for relief in identifying specifically the duty of the individuals named and how they contributed to the irregularities. The trial will have the plaintiff presenting individual cases of violations and individual examples of the defendants' participation in these irregularities. The plaintiff meets all requirements for a sufficient cause of action. The list of Federal Court defendants shows the degree of censure of the plaintiff from what were the most visible forums and media outlets in the race. This identifies the failure of Maryland Board of Elections and Maryland Attorney General's office to respond to the plaintiff's requests for relief and shows a pattern of aiding and abetting these election irregularities to the point of making the entire election system rife with violations. Make no mistake, exclusion of a candidate in a race is opposition and does damage to that candidate. To have this exclusion systemic throughout the State of Maryland's election structure with plaintiff unable to receive relief from any person charged with upholding these laws shows extreme malice. There was not only one attempt to correct this problem. There were several. The City of Baltimore and Prince George's County are the largest voting districts in the state and heavily labor and justice voting demographics and is where Cindy Walsh faced the greatest censure. The complaint does not have to present all of the details to be shared in the course of the trial, it merely has to lay the groundwork for the claim legally and state the relief desired.

Doug Gansler, Anthony Brown, and Heather Mizeur on several occasions acted to create forums for debate that openly excluded Cindy Walsh. All three watched as the plaintiff was pulled out of forums and the defendant participated in forums he knew were not following FCC and IRS election law by excluding candidates. If you choose to participate in actions that are known to be illegal you can be alleged guilty as well.This is not what the defense calls 'just being a candidate in the Democratic Gubernatorial primary'. When you exclude, you oppose and damage a candidate.﻿ If you participate in an event violating election law you are aiding and abetting and equally guilty.﻿

The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. The prohibition applies to all campaigns including campaigns at the federal, state and local level.

I included the laws pertaining to FCC election requirements for private and non-profit media in my original complaint. I include the IRS laws in this response referred to above. It is clear that widespread violation of FCC and IRS election law existed during this Democratic Primary for Governor of Maryland. It is clear that the Maryland Board of Elections and the Maryland Attorney General's office allow these violations to exist. Even calls for relief by a candidate did not prompt response from these agencies tasked with enforcement of Federal and State election law.There are no grounds for dismissal due to insufficient cause of action.

2. The complaint does not allege any cognizable cause of action against Defendants

a) There is so much evidence for cause of action in this case. Brown, Mizeur, and Gansler's violations were not simply the act of running for Governor. Exclusion of1/2 of the participants in a race at the starting line is not accepted in any competition venue and especially elections. Cindy Walsh identifies Brown, Mizeur, and Gansler in all references to the candidates for Democratic Primary for Governor and as a 501c3 political committee in this original complaint.

Below you see where Brown, Gansler, and Mizeur are themselves planning their own set of debates and forums. This is a direct violation of 501c3 election law and below that you see a list of election events Brown, Mizeur, and Gansler attended knowing the selective nature of the panels. The defendants are aware of 501c3 election laws as is their obligation as candidate committees so would know that all of the organizations below would be required as well to be inclusive of all candidates. This was outlined in my original complaint.

﻿'The three major Democratic candidates for governor' it says below. Oh, you mean the candidates that received 5% and/or 12% of the entire registered Democratic vote after months of saturated media coverage? That makes a major candidate? Cindy Walsh finished with 1%----within 'striking distance' being completely censured from most major election venues.﻿The process of claiming public support is so arbitrary and filled with corruption as to fail in free and fair elections even if using polls and public support were allowed to exclude candidates from the rights given by IRS and FCC election laws.﻿The Maryland Board of Elections with Mackie and Lamone are charged with protecting candidates from just these kinds of election frauds. The polling in this Democratic race for Governor was used as a marketing tool having no basis in the science of polling. Using 'Likely voters' in polling that only include the 20% of voters that come to the polls perpetuates the exclusion of the 80% not finding candidates for whom they want to vote. 'Likely voters' creates an arbitrary poll and not a scientific poll. Leaving Cindy Walsh off the polls and then requiring these poll numbers in order to be 'selected' shows deliberate, willful, and extreme malice in trying to exclude candidates and the plaintiff says it has to do with platform and not viability.﻿

By John Wagner April 30 The three major Democratic candidates for governor of Maryland publicly feuded Wednesday over how often they would debate, with two rivals threatening to hold a televised encounter in Baltimore without the front-runner, Lt. Gov. Anthony G. Brown.

The contentious day began with an early morning statement from Brown’s campaign that he had agreed to participate in two televised debates — including one next Wednesday — and one radio debate in advance of the June 24 primary.

Aides to Attorney General Douglas F. Gansler and Del. Heather R. Mizeur (Montgomery) said that schedule did not make good on an agreement among the campaigns to participate in three televised debates.

Place, date, and time of violation:

Universities at Shady Grove, March 24, 2014 at 12:00pm

Towson University SECU Arena Thursday, April 17 7-8 p.m.

University of Maryland Carey Law School Baltimore, MD Monday, Apr 21 6:45p

Church of the Great Commission/Collective Empowerment Governor's Forum May 29, 2014 at 7:00pm

b) Brown, Gansler, and Mizeur were in the news continually as they met to plan 3 debates amongst themselves openly excluding 3 other Democratic candidates as will be shown in the trial. They participated in events over and over where only Brown, Gansler, and Mizeur were included. The media described events as 'The Three Democratic Candidates for Governor'. Brown is not responsible for that headline but he knows at that point the event excluded 3 other candidates for Governor. There is no defense of ignorance of these irregularities. Brown, Gansler, and Mizeur were often present as Cindy Walsh was openly left unable to participate. If you sit down at a panel and one candidate is being taken off so as to be excluded, you are participating in the violation. It is like a gambler who enters a gambling hall he knows is illegal and then sits down to play. If he plays, he breaks the law. Brown will contend he had no knowledge of exclusion but the saturation of exclusion was complete. No one can plead ignorance in these cases.

Aiding and abetting is a legal doctrine related to the guilt of someone who aids or abets in the commission of a discriminatory act.

It is illegal civil violations this complaint claims changed the election results. When you allow the media/non-profits to ignore FCC/IRS regulations regarding elections and participate.....the behavior distorts the entire election process and denies legal candidates in a race civil rights and justice and voters a chance to get to know all candidates and platforms in an election.

In Maryland, the Constitution states that"the right of the people to participate in the Legislature is the best security of liberty and the foundation of all free government" and directs the General Assembly to"pass laws necessary for the preservation of the purity of elections."'

Court of Appeals of Maryland. June 01, 1856 9 Md. 242 1856 WL 2786The constitution provides, that the clerk of the Superior Court of Baltimore city shall be subject “to be removed for wilful neglect of duty or other misdemeanor in office, on conviction in a court of law.” The 5th section of the act of 1856, ch. 286, enacts, that a “refusal or neglect” on the part of this clerk to give the bond prescribed by that... ...

A legal principle in California that allows the state to prosecute everyone who is "in on" a crime...even if they don't perpetrate the crime directly.

Example: Alan, Bill and Charlie plan out a bank robbery. Each plays a different role. Alan draws up a diagram of the teller windows and the safes. He gives it to Bill (after which Alan's role is done). Charlie drives Bill to the bank and waits out front in the getaway car. Bill actually goes in and robs the bank. Bill comes running out with the loot, jumps in the car, and Charlie drives the two of them off.

Technically speaking, only Bill did the actual "robbing." But prosecutors could charge all three with bank robbery: Bill as the direct perpetrator, Alan and Charlie as aiders and abettors. In Alan's case, he's liable for the robbery even though he wasn't even present at the crime scene.That's because California's aiding and abetting laws assign criminal liability to anyone who

encourages,

facilitates, or

aids

in the commission of a crime, no matter how seemingly insignificant that person's role.1 But there must be some type of involvement before you can be convicted. Mere knowledge about the crime or presence at the scene will not suffice

c) The Maryland Board of Elections list of Democratic Primary candidates for Governor is an official government document. It is not to be altered in any way. To present a government document in a way that distorts the original is a False Statement. When media, 501c3s including political candidates openly choose to distort the list of Democratic Primary candidates for Governor they are misrepresenting/deceiving the public. Changing an element of a government contract for gain is no different than changing the list of candidates for gain. When you have public officials sworn to uphold the Constitution falsifying an election document, you have violations of False Statement. A citizen damaged by these False Statements has the right to claim damage according to Maryland law. Media outlets presented lists of Democratic candidates for Governor that selected who made that list. The Maryland Democratic Party website had its list of candidates for Governor with all the candidates except Cindy Walsh including all branch websites across the state. This is False Statement and the Maryland Board of Elections needs to monitor and hold accountable deliberate, willful, and with extreme malice cases of censuring candidates.

(a) If any certificate contains a false statement, one who suffers loss by reliance on the statement may recover damages for the loss from:

(1) Any person who executes the certificate, or causes another to execute it on that person’s behalf, and knew, and any general partner who knew or should have known, the statement to be false at the time the certificate was executed; and

(2) Any general partner who thereafter knows or should have known that any arrangement or other fact described in the certificate has changed, making the statement inaccurate in any material respect, if that general partner had sufficient time to amend or cancel the certificate or to file a petition under § 10-205 of this subtitle before the statement was relied upon.

The plaintiff's amended complaint addressed a missed defendant and it redefined the damage relief from that of official capacity to personal capacity. This was done because of original lack of awareness of these distinctions. The defense claims financial claims have not been made on public officials but in fact there have been claims and money awarded for malice. The plaintiff asks for $500,000 in award due to False Statements and defamation and personal capacity damages with malice.

d) The Federal Code protects citizens from defamation; the law and legal history included in original complaint. Broadcasting through media or forums that Cindy Walsh was not a candidate for Governor by exclusion sought to damage her career and financial gains in salary as Governor. A four year term as Governor would be approximately $500,000. This is on what the $500,000 relief was based.

Compensatory Damages

The amount of money that will restore her to the position she was in before the defendant’s conduct caused an injury.The single recovery principle requires a court to settle the matter once and for all, by awarding a lump sum for past and future expenses.

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

The defense finds the Oath of Office irrelevant----it is the center-piece of all duties in office. If you pass law to preserve the purity of elections then a public official must abide by it. This is the Constitution...the highest law.Brown, Gansler, Mizeur, Mackie, and Lamone are not protected by official capacity in this complaint because they individually chose to ignore election law. The defendants were not acting in an official capacity and the candidates are running as citizens, not elected officials.

The defendants needs to honor these Maryland laws and allow due process in what is a court claim requiring an expedited trial.

Maryland Constitution

1.7 Laws to be passed for preservation of purity of elections. The General Assembly shall pass Laws necessary for the preservation of the purity of Elections.

1.8 Legislature to make provisions for contested elections. The General Assembly, shall make provisions for all cases of contested elections of any of the officers, not herein provided for.

1.9 Every person elected, or appointed, to any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath, or affirmation: I, ..........., do swear, (or affirm, as the case may be,) that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and Laws thereof; and that I will, to the best of my skill and judgment, diligently and faithfully, without partiality or prejudice, execute the office of .............., according to the Constitution and Laws of this State, (and, if a Governor, Senator, Member of the House of Delegates, or Judge,) that I will not directly or indirectly, receive the profits or any part of the profits of any other office during the term of my acting as ..........

3. Plaintiff's Claim is Untimely filed and Must be Dismissed.

The defendant's lawyer wants to make the case that a law protecting voters from any act or omission relating to an election does not refer to the candidates in the election but may only regard the polls. The reason 80% of voters do not vote is the quality of candidates allowed full participation in these election races. It makes no difference if your polling rights are protected if you have no one for which to vote. This is why we have the IRS/FCC election laws and it is why election laws say ' the voters must be aware of all issues and candidates so as to cast an intelligent vote. That is what makes a citizen and voter. Also, the candidate is a voter. There is no inconsistency with the election article with this interpretation. Nothing changes the results of an election more than 80% of voters not coming to the polls. Precedent in law always starts from the first verdict.

Regarding Md Code Ann. Election Law Statute 12-202(a):

Cindy Walsh was so overwhelmed by the level of irregularities that it was impossible for the plaintiff to address them individually or seek relief from the court as they occurred. I am sure the court would not want the plaintiff to have handled systemic election irregularities that way. That is why plaintiff decided to let the Maryland Board of Elections and Maryland Attorney General know and sough relief from those agencies since they are tasked with those duties. The intent is to address the larger organizational violations in a Federal lawsuit. This is why the plaintiff did not come to the court when first offended.

The law gave the second option---contesting the election due to irregularities that changed the results of the election and that is what this complaint does. The law gives 3 days after election is certified. The timeline of contesting the results of this Democratic Primary election for Governor of Maryland started when the Maryland Board of Elections certified the election on July 10, 2014. The plaintiff filed the complaint in the Baltimore City Circuit Court on July 11, 2014. The summons were served July 21, 2014. The 30 day response period was over on August 22, 2014. All of this meets every obligation the plaintiff has in processing this case.

The defendant's lawyer seems to refer to the primary election date itself as if that were when the timeline should begin. The plaintiff cannot move forward until it is clear the Maryland Board of Elections would not invalidate the election by certifying the results. Why would the court want to become involved until it is known the Elective Body will not respond to the plaintiff's calls for relief? So, the defendant's mention of July 14, 2014 makes no sense. The statute clearly gives the choice of 3 days after the certification of the election.

4. The defense says in its response that the plaintiff stated 'substantial probability' she would win. Cindy Walsh did not allege that for the irregularities there was a substantial probability she would win. The Amended Complaint spoke specifically to the fact that the only burden of proof fell to simply finding the irregularities would change the election results.

The defense contends that invalidating an election in which approximately 500,000 Democratic voters cast a vote would be unjust for those voting in this election. Given that only the voters for Anthony Brown actually benefited from this vote that number falls to approximately 250,000. Meanwhile, 1 and 1/2 million registered Democratic did not vote due to lack of support of the candidates allowed to participate in the election. Whether or not those not voting would vote for Cindy Walsh, it is without a doubt that given the access required by law the plaintiff would have received the 250,000 votes needed to win. So might the other 2 Democratic candidates declared not viable at the start of this race. A million and 1/2 votes is a lot of votes up for grabs. The plaintiff does not have to prove a number of votes, she only has to prove that the election irregularities changed the results of this election and it did.

5. Official capacity vs personal capacityThe complaint does indeed show extreme malice and gross negligence in both Gansler's run for office and with Mackie and Lamone's oversight of Maryland Elections Board. An election system does not become systemic with irregularities if proper oversight is in place. A candidate in an election is not censured from most election events even as FCC and IRS laws say 'do not oppose' if proper oversight is in place.Gansler was not acting as a public official in this election. He was a citizen running for office. Mackie and Lamone cannot be said to be working in official capacity while openly failing to perform their duties. Protection from official capacity comes when a public official is sued while performing the duties of their office. Negligence and non-performance of duties falls to individual capacity as Mackie and Lamone chose to act illegally in allowing these wide-spread irregularities to exist. Again, when one sees a crime and does not stop or report it …...it becomes aiding and abetting crime. We are dealing in a civil case so we have irregularities, but as a whole it adds up to election fraud. The crime is fraud.

Official Capacity vs Personal Capacity Lawsuits

Personal capacity suits are brought against government officials who exceed or abuse their authority under state or local law. Under Section 1983, officials who exceed or abuse their authority under state or local law can be held personally liable for damages. The damages are limited, however, by various immunities. Officials with qualified immunity may be held liable only for actions which violated the 'settled constitutional rights' of the plaintiff at the time of the action.

Maryland does not recognize a distinction between suits against officials in their individual vs official capacities. Damages may be awarded against the official personally in both instances. Also, Maryland does not seem to recognize a qualified immunity for state officials. These two differences may make it possible for plaintiffs to recover in Maryland courts under some of the circumstances where recovery is not allowed under federal law.

6. In response to the defendants' lawyer and the use of Arkansas Educational Television vs Forbes as a reason to ignore the FCC and IRS election laws requiring opportunity and that there be no opposition:

The Supreme Court ruling on AETC vs Forbes was considered at the time far from mainstream legal standings and indeed after this ruling many of the same kinds of complaints have been brought with the plaintiff winning the right of participation. It shocked much of the legal world. We ask this court to stand with the mainstream standings and not one marginal ruling. Below you see the court ruling before heading to the Supreme Court and the reasons this court ruled with Forbes.Most important, we do not want to confuse a court case involving national third party candidates with a state election involving major party candidates. Cindy Walsh's complaint is about excluding intra-party, not excluding a third party without popular support. The use of the term 'popular public support' is so arbitrary as to be useless in a state-wide election as is the standard used to decide this. Anthony Brown supposedly won with 12% of the registered Democratic vote; Gansler and Mizeur garnered 5% each. Is that popular support? Of course not. Gimmicky polling was used to create the appearance of popular support. Polling that did not even have Cindy Walsh included; there was no way for this plaintiff to poll. Using these final percentages Brown, Gansler, and Mizeur would not have been allowed in these major forum venues. To call a candidate with my platform marginal shows a lack of understanding of the political climate in Maryland. The defendants' lawyer wants to make the IRS and FCC election laws irrelevant but they are not.

Cindy Walsh will include this analysis by the ACLU in its entirety because it addresses all the elements in this case. Remember, the ACLU was arguing from the mainstream with precedent behind them. The Supreme Court ruling had marginal following.

'The cause of action is often stated in the form of a syllogism, a form of deductive reasoning that begins with a major premise (the applicable Rule of Law), proceeds to a minor premise (the facts that gave rise to the claim), and ends with a conclusion'.

Cindy Walsh followed a reasoned path in providing proof that the original complaint had all the elements of cause, ties these claims directly to the defendant and does so further in this response. The law was defined; the duties of the defendant under these laws was defined; and the failures to adhere to these laws were clearly shown. A complaint does not have to include all the specific of place and time, it simply needs to clearly state the claims and over a relief.

The State of Maryland is in crisis with its election system. With 80% of voters eligible to vote in primaries choosing not to vote and many counties and cities seeing only around 20% coming out to general elections we know citizens are not seeing anyone for whom they want to vote. My complaint shows exactly why this is the case. The candidates people want to see are not given a venue to have their names and platforms heard by systemic exclusion from the election events all of which violate law. Cindy Walsh cannot demand private media give her campaign the 300 mentions that they give Anthony Brown. That is where the FCC laws state that there is no expectation of equal opportunity in these venues. It clearly states that if media chooses to open the door to one candidate it must open the door to all candidates. Whether voter lists, lists of candidates for governor, special series involving talks with the candidates, and election coverage that names all the candidates in a race when talking of the field in general. Media even felt brave enough to use the phrase 'the three Democratic candidates for Governor' over and over again as if Cindy Walsh did not exist. Even private media has to meet these guidelines and public media especially. None of that happened in this election in any of the media venues. The irregularities were systemic.

It is the voters who decide which candidate has a platform they want to support. Calling a candidate not viable because of money issues, which major organization is supporting the candidate, what the polls say has nothing to do with a voter simply knowing who each candidate is and what the platform contains. It is the voter who decides which candidate will have popular support. Anthony Brown supposedly won this election with 12% of registered Democratic voters. Mizeur and Gansler ended with 5% each and this was after saturated media and event coverage for months. Cindy Walsh won 1% of the votes completely censured which in journalistic terms is 'within striking distance' of Anthony Brown. It is without a reasonable doubt the election results would have been changed and in fact the plaintiff would have won this election had these systemic violations not occurred.

The plaintiff only needs to prove the election results would be changed by these election irregularities. The cause of action is clear; the defendant is tied to those causes; the filing timeline was met and it would be extremely unjust to deny the plaintiff her day in court.

On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit Brief Amicus Curiae of the American Civil Liberties Union, and the ACLU of Arkansas in Support of RespondentTABLE OF CONTENTS

GOVERNMENT BROADCASTERS ARE GENERALLY ENTITLED TO BROAD PROGRAMMING DISCRETION AND GOVERNMENT BROADCAST NETWORKS SHOULD NOT BE REGARDED, FOR MOST PURPOSES, AS A FORUM FOR SPEECH BY MEMBERS OF THE PUBLIC II. WHEN A GOVERNMENT BROADCASTER SPONSORS AND AIRS A POLITICAL CAMPAIGN DEBATE, IT CREATES A LIMITED PUBLIC FORUM FOR SPEECH BY BALLOT-QUALIFIED CANDIDATES III. REGARDLESS OF THE NATURE OF THE FORUM CREATED BY AETN, ITS EXCLUSION OF FORBES WAS UNCONSTITUTIONALLY VIEWPOINT-BASED AND NOT REASONABLY RELATED TO THE PURPOSE OF THE DEBATE A. Deciding That a Ballot-Qualified Candidate Is Not Viable Or That The Public Will Be "Best Served" By Excluding Him From A Debate Is Viewpoint Discrimination B. Excluding Forbes was Unreasonable in Light of the Forum's Purpose CONCLUSIONNOTESINTEREST OF THE AMICI CURIAE1 The American Civil Liberties Union (ACLU) is a nationwide, nonpartisan organization with nearly 300,000 members dedicated to defending the constitutional rights and liberties enshrined in the Bill of Rights. The ACLU of Arkansas is one of its statewide affiliates. This case implicates two principles that have been central to the ACLU since its founding in 1920: the general free speech right of journalists to make editorial decisions, and the obligation of government not to discriminate against nonmainstream political candidates. Amici submit this brief because we believe that the proper resolution of this case must take into account both of these fundamental constitutional principles. STATEMENT OF THE CASE Ralph Forbes filed suit in October 1992 against the Arkansas Educational Television Commission (AETC), the Arkansas Educational Television Network (AETN), and other groups, challenging on First Amendment grounds their decision to exclude him from a televised debate among candidates for Congress in the Third District of Arkansas.2 Forbes had submitted sufficient signatures to qualify for the ballot, and was the only ballot-qualified candidate in the race other than the major party Republican and Democratic nominees. AETN is a state-owned and operated television network created by Arkansas law, Ark.Stat.Ann. ¤6-3-101, et seq., for the purpose of developing and enhancing public education, and making its benefits available to the people of Arkansas. See Ark.Stat.Ann. ¤6-3-105(a); note to ¤6-3-101. The network is governed by the AETC, which has the statutory power to "control[] and supervis[e] the use of channels reserved by the Federal Communications Commission to Arkansas for noncommercial educational use," to "designate the location of stations to utilize such channels," and to "make rules and regulations governing the operation of these stations and the programs televised over these channels." ¤6-3-105(c), (d). All of the commissioners of the AETC are appointed by the governor with the advice and consent of the Senate for terms of eight years. ¤6-3-102(b)(1). AETN's Programming Policy recognizes the network's status as a state agency that must, for example, "observe[] the constitutional principle of separation of church and state." Appendix J to Petition for Writ of Certiorari at 99a (Cert.App.). Although a state agency, AETN is not simply a mouthpiece for the ideas and viewpoints of the government of Arkansas. According to its Programming Policy, "AETN maintains public trust in its editorial integrity by shielding the programming process from improper political pressure or influence from program funders or other sources." Cert. App. at 98a. It subscribes to the "Statement of Principles of Editorial Integrity in Public Broadcasting," id. at 99a, developed at the Wingspread Conference on Editorial Integrity in 1985, which emphasizes the importance of protecting all public broadcasters from "extraneous interference and control," as well as fostering "journalistic objectivity" and "a free and independent decision-making process which is ultimately accountable to the needs and interests of all citizens." Id. at 68a, 69a. AETN's Programming Policy also stresses the network's obligation to "further[] the goals of a democratic society by enhancing public access to the full range of ideas and viewpoints required for citizens/voters to make informed judgments about the issues of our time." Id. at 100a. It adds: "In matters of public importance that may be controversial, special attention is invested to assure fairness in treatment of different points of view." Id. Nevertheless, in September 1992, AETN denied Forbes' request to be included in the Third District candidates' debate which it had scheduled for October 22nd. Its reason, according to its executive director, was that AETN had "made a bona fide journalistic judgement that our viewers would be best served by limiting the debate to elected nominees of the two major parties." Id. at 103a. AETN then promoted the debate with an advertisement that said: Do you know your candidate? Get better acquainted with the candidates and the issues. Democrat John Van Winkle of Fort Smith and Republican Tim Hutchinson of Bentonville debate the issues as they campaign for the Third Congressional District seat, live tonight at 7:00, AETN, where learning never ends. Joint Appendix (J.A.) at 135. Forbes then filed suit and moved for a preliminary injunction ordering his inclusion in the October 22nd debate. The district court denied his motion, relying on the then-governing Eighth Circuit precedent of DeYoung v. Patten, 898 F.2d 628 (8th Cir. 1990), which had rejected a political candidate's First Amendment claim of access to a televised campaign debate sponsored by a government broadcaster. SeeForbes v. Arkansas Educational Television Network Found. (Forbes I), 22 F.3d 1423, 1428 (8th Cir. 1994), cert. denied, 115 S.Ct. 500 (petition of AETC); 115 S.Ct. 1962 (1995)(petition of Forbes). The district court subsequently dismissed Forbes' complaint for failure to state a claim. SeeForbes v. Arkansas Educational Television Comm'n (Forbes II), 93 F.3d 497, 500 (8th Cir. 1996). The Eighth Circuit reinstated the First Amendment claim on appeal, overruling DeYoung in part. Specifically, the Eighth Circuit held that, if the facts showed that AETN had created a "limited public forum" for the televised debate, "then Forbes would have a First Amendment right to participate" and "could be excluded only if AETN had a sufficient government interest." Forbes I, 22 F.3d at 1429. The court further held that "if AETN failed to include Forbes because of objections to his viewpoint, it has violated his First Amendment rights," even if the state-sponsored debate were a "nonpublic forum." Id. The case was remanded for factfinding on these two issues. On remand, the case was tried to a jury, which found in response to special questions that AETN's decision to exclude Forbes was neither "the result of any political pressure coming from outside the professional staff of AETN," nor a product of "disagreement with his opinions." Forbes II, 93 F.3d at 501. Based on these answers, the district court found no viewpoint discrimination. Since the court had also ruled as a matter of law that the debate was a nonpublic forum, it entered judgment for AETN. Id. The Eighth Circuit again reversed. Although approving the district court's handling of the viewpoint discrimination issue, it took issue with the trial judge's determination that AETN had not created a limited public forum when it sponsored the televised debate. Citing Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. , 115 S.Ct. 2510 (1995), and Widmar v. Vincent, 454 U.S. 263 (1981), the court of appeals found that the debate was a limited public forum because AETN, "by staging the debate, opened its facilities to a particular group -- candidates running for the Third District Congressional seat." Forbes II, 93 F.3d at 504.3 Emphasizing that "we are dealing here with political speech by legally qualified candidates, a subject matter at the very core of the First Amendment," id., the Eighth Circuit then held that the exclusion of Forbes was unconstitutional. SUMMARY OF ARGUMENT This case presents the narrow question whether a government-owned and operated broadcast network's ordinarily broad discretion to make editorial decisions must give way to First Amendment interests when the network sponsors a campaign debate among ballot-qualified candidates for political office, but excludes one such candidate on the ground that network executives do not consider his candidacy "viable" and believe that the public would be "best served" by not hearing his views. Accordingly, the case presents no occasion to question a government broadcaster's general authority to make programming decisions, advance some points of view, and exclude others. Still less does it raise any issue regarding access by outsiders to programs produced and aired by private broadcasters, whether for-profit or nonprofit, and regardless of whether they receive government funds. A candidate's debate sponsored by a government broadcaster is different from almost all other television programming not only, as we argue below, because the debate constitutes a limited public forum for speech by the small, easily defined class of ballot-qualified candidates, but because the stakes are particularly high. As this Court has repeatedly noted, the First Amendment has "its fullest and most urgent application" to speech by candidates in a political campaign. Buckley v. Valeo, 424 U.S. 1, 15 (1974) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). Because the inevitable consequence of a decision by government broadcasters to exclude a ballot-qualified candidate will be to diminish that candidate's visibility, deprive the public of an opportunity to hear his views, "skew the debate" toward mainstream, conventional ideas, and accordingly distort the democratic process, the Court should recognize a narrow, First Amendment-based exception in these circumstances to the general proposition that government broadcasters have editorial discretion to determine the nature and viewpoint of their programming. The Eighth Circuit thus correctly ruled that AETN's sponsorship of the candidates' debate created a limited public forum. Unlike most programming on a government-owned television station, which is simply not a forum for speech by the general public, a televised debate for a particular political office is by its nature a forum created for political advocacy by a particular class of speakers -- here, ballot-qualified candidates for that office. AETN intentionally opened this program to a limited class of ballot-qualified candidates, and the program was completely "compatib[le] with [their] expressive activity." Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 802 (1985). The Eighth Circuit erred, however, in concluding that the exclusion of Forbes was not viewpoint-based. Although the jury found that AETN did not reject Forbes because of hostility to his views or outside political pressure, the network's very conclusion that he was not "viable" and that the public was "best served" by not being exposed to his ideas was fundamentally viewpoint-discriminatory because it represented a judgment that nonmainstream or controversial opinions are not worth hearing. Thus, regardless of the nature of the forum created by a government-sponsored candidates' debate, AETN's exclusion of Forbes on the basis of perceived nonviability or unpopularity violated the strong First Amendment command of viewpoint neutrality. The rejection of Forbes was also, as the Eighth Circuit ruled, fundamentally unreasonable "in light of the purpose served by the forum." Cornelius, 473 U.S. at 806. It vests too much discretion in state employees -- even when they are journalists -- to permit them to exclude a ballot-qualified candidate from a televised debate based on their perception that hearing the candidate's views will not be in the best interests of the public. Indeed, such an exclusion contravenes AETN's own educational purpose because it deprives the public of political information and ideas in the important context of an electoral campaign. Recognizing the existence of a limited public forum here, and acknowledging that the exclusion of Forbes was both unreasonable and viewpoint-based, will not interfere with the otherwise broad discretion of government broadcasters to determine the nature and quality of their programming. This case turns on two relatively unique facts: the creation of a forum and the context of an election. When these facts are not present, a state-owned broadcasting station resembles in many respects a public library, a public museum, or even a public university -- entities owned and financed by government, yet vesting substantial editorial discretion in the professional employees who decide what literature, art, or educational materials will be communicated. Under other circumstances, therefore, the professional decisions of these employees are themselves entitled to First Amendment protection -- as, for example, when a state-employed university professor resists forced loyalty oaths or other infringements of academic freedom. However, as the present facts demonstrate, these employees are also state actors, and in some cases can violate the First Amendment rights of others. ARGUMENT I. GOVERNMENT BROADCASTERS ARE GENERALLY ENTITLED TO BROAD PROGRAMMING DISCRETION AND GOVERNMENT BROADCAST NETWORKS SHOULD NOT BE REGARDED, FOR MOST PURPOSES, AS A FORUM FOR SPEECH BY MEMBERS OF THE PUBLIC. The question of whether and how the First Amendment applies to a government agency that operates a broadcast network is a complex one. On the one hand, it is clear that the First Amendment "protects the press from governmental interference; it confers no analogous protection on the Government." Columbia Broadcasting System v. Democratic Nat'l Comm., 412 U.S. 94, 139 (1973)(emphasis in original) (Stewart, J., concurring). At the same time, the care that AETN has taken to establish its editorial integrity undoubtedly reflects important First Amendment values, including the right of the public to receive information free from partisan political constraints. SeeBoard of Education, Island Trees Union Free School District v. Pico, 457 U.S. 853 (1982); Lamont v. Postmaster General, 381 U.S. 301 (1965). As AETN's Programming Policy makes clear, the network asserts a high degree of editorial independence and does not view itself as simply a propaganda arm of the state. A fortiori, this is true of the journalists employed by AETN.4 Accordingly, amici agree with the observation of the plurality in Muir v. Alabama Educational Television Comm'n, 688 F.2d 1033, 1041 (5th Cir. 1982)(en banc), cert. denied, 460 U.S. 1023 (1983)(rejecting a First Amendment challenge to the cancellation of a controversial program), that government broadcasters generally should have the same ability "to make free programming decisions as their private counterparts." As Judge Rubin explained in a separate concurring opinion (joined by Judges Politz, Randall and Williams): The function of a state agency operating an informational medium is significant in determining first amendment restrictions on its actions. State agencies publish alumni bulletins, newsletters devoted to better farming practices, and law reviews; they operate or subsidize art museums and theater companies and student newspapers . . . . The first amendment does not dictate that what will be said or performed or published or broadcast in these activities will be entirely content-neutral. In those activities that, like television broadcasting to the general public, depend in part on audience interest, appraisal of audience interest and suitability for publication or broadcast inevitably involves judgment of content. Id. at 1050.5 Thus, even though a government agency, AETN retains editorial discretion in most circumstances to design programming that it believes is educational and valuable without oversight by the judiciary or any other branch of government.6 Properly understood, most of a government broadcaster's programming decisions simply do not fit within traditional forum analysis because the broadcaster has not ceded its platform to outside speakers. CompareLamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). Even invited guests who appear on a program generally do so within a format over which the broadcaster retains editorial control.7 But because AETN is a government agency, it is also bound by the First Amendment, and once it exercises its discretion to create a forum for qualified political candidates it must bear the constitutional consequences of its decision.8 Despite disagreements over the outcome, the various opinions in Muir accepted the principle that government broadcasters may be subject to First Amendment constraints in appropriate circumstances. See 688 F.2d at 1050 (Rubin, J., et al., concurring)(different First Amendment requirements exist when state is "conducting an activity that functions as a marketplace of ideas" than when it "is devoted to a specific function" such as publishing a military newspaper or holding a press conference); id. at 1053-60 (Johnson, Hatchett, Anderson, Tate, and Thomas A. Clark, JJ., dissenting) (government broadcaster's cancellation of already scheduled program because of political pressure should be seen as unconstitutional); id. at 1060 (Reavley, J., dissenting)(government broadcaster has editorial discretion, but may not make decisions based upon "viewpoint alone"). Even the court in Chandler v. Georgia Public Telecommunications Comm'n, 917 F.2d 486, 489 (11th Cir. 1990), cert. denied, 112 S.Ct. 71 (1991), although denying the First Amendment claims of two candidates excluded from state-sponsored television debates, noted that "the use of state instrumentalities to suppress unwanted expressions in the marketplace of ideas would authorize judicial intervention to vindicate the First Amendment."9 This Court has also recognized that state actors have constitutional obligations to the public when they publish, broadcast, distribute literature, or otherwise engage in the business of communicating ideas. In Board of Education v. Pico, 457 U.S. at 870-71, a plurality held that the First Amendment limits the power of local school boards to remove books for ideological reasons.10 Other courts have come to like conclusions as they have struggled to balance the competing claims of the public and of government decisionmakers in dealing with government-disseminated speech.11E.g., Serra v. General Services Admin., 847 F.2d 1045, 1048-49 (2d Cir. 1988)(citing Pico)(even with respect to government-owned artwork, "there are conceivably situations in which the Government's exercise of its discretion . . . could violate the First Amendment rights of the public . . . [I]t is possible that the Government's broad discretion to dispose of its property could be exercised in an impermissibly repressive partisan or political manner"); Estiverne v. Louisiana State Bar Ass'n, 863 F.2d 371, 381-82 (5th Cir. 1989)(even though state-owned bar journal has editorial independence, it is nevertheless bound by First Amendment, so that decisions must be reasonable and viewpoint-neutral); Bryant v. Secretary of the Army, 862 F.Supp. 574 (D.D.C. 1994)(rule banning writings "not in consonance with policies of the Department of the Army" in "personal commentary" section of military publication is unconstitutionally viewpoint-based); Aldrich v. Knab, 858 F.Supp. 1480, 1490-94 (W.D.Wash. 1994)(state university-owned radio station had opened itself as nonpublic forum to speech by volunteers and thus could make general editorial decisions but not discriminate based on speakers' viewpoints). As in Pico, Serra, Estiverne, Bryant, and Aldrich, so here, the problem is to reconcile the government-employed speakers' discretion with the public's First Amendment right to receive relevant information about a political campaign, and the candidate's First Amendment right to avoid discriminatory exclusion from a government-sponsored debate. Given that the First Amendment has "its fullest and most urgent application" to political campaign speech, Buckley v. Valeo, 424 U.S. at 14-15, the balance in this case must tilt in favor of Forbes and the public. As Judge Clark noted in Chandler, For the state to set up . . . a debate and exclude certain candidates not only puts its stamp of approval on the favored candidates, it also "curtail[s] access to ideas" by preventing the ideas and information that would be produced through the debating candidates' interaction from coming to light. 917 F.2d at 493-94 (Clark, J., dissenting).12II. WHEN A GOVERNMENT BROADCASTER SPONSORS AND AIRS A POLITICAL CAMPAIGN DEBATE, IT CREATES A LIMITED PUBLIC FORUM FOR SPEECH BY BALLOT-QUALIFIED CANDIDATES In this case, AETN's editorial discretion was limited by its creation of a limited public forum for speech by candidates for the Third Congressional District.13 That is, the televised debate was not like most AETN programs, in which the government broadcasters frame the subject matter and decide what viewpoints will be heard. Instead, for purposes of the debate AETN essentially turned the microphone over to the candidates. As Judge Clark perceived in Chandler, so here, AETN "already decided to give over its airwaves to political contenders for [elected] office[]." 917 F.2d at 493 (Clark, J., dissenting). This Court ruled in Cornelius that two factors guide the determination whether a state agency has opened a limited forum for citizens' speech: first, the agency's intent "to designate a place not traditionally open to assembly and debate as a public forum" and, second, "the nature of the property and its compatibility with expressive activity." 473 U.S. at 802. AETN's candidate debate satisfies both of these requirements. First, by sponsoring the debate AETN opened to ballot-qualified candidates a forum (a TV program) that is not generally available for members of the public. The fact that this was a forum so limited that only three people qualified does not change its nature,14 for Forbes was certainly in the "class of speakers" for which the forum was designed. As the Second Circuit explained in Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 692 (2d Cir. 1991), "in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre" (emphasis added). See alsoEstiverne, 863 F.2d at 378 n.10 (in limited public forum, medium "must at least be designed to provide a vehicle for expressive activity by the class of speakers claiming access"). Thus, the Eighth Circuit properly ruled that AETN could not, "simply by its own ipse dixit, define a class of speakers so as to exclude a person who would naturally be expected to be a member of the class on no basis other than party affiliation." Forbes II, 93 F.3d at 504. Or, as this Court reiterated in Rosenberger, 115 S.Ct. at 2517, "[o]nce it has opened a limited forum, . . . the State must respect the lawful boundaries it has itself set."15 The televised debate was also a limited public forum because of "the nature of the property and its compatibility with expressive activity" by all three candidates. Cornelius, 473 U.S. at 802. As noted, as a ballot-qualified candidate Forbes was a member of the limited class whose campaign speech was compatible with the forum that AETN created. Indeed, AETN's advertisement created the impression that all candidates were included -- "Do you know your candidate? Get better acquainted with the candidates and the issues . . . ." (J.A. 135) -- while falsely implying that the Republican and Democratic nominees were the only available choices. AETN and its amici, making a great issue of Forbes' limited support and shoestring approach to campaigning, argue essentially that AETN can redefine the forum to include only "serious" or "viable" candidates.16 But the State of Arkansas had already determined Forbes' viability by certifying that he was ballot-qualified. In rejecting Forbes, AETN in essence made a judgment that his ideas were not worth hearing despite his ballot-qualified status -- a judgment that condemned him to marginality, and that government agencies should not make even under the guise of journalistic discretion. For, as scholars have observed with respect to independent candidacies, "[t]he prophecy that a candidate cannot win is self-fulfilling." Steven J. Rosenstone, Roy L. Behr, & Edward Lazarus, THIRD PARTIES IN AMERICA 39 (2d ed. 1984). Because state broadcasters, like public schools and other government agencies, have unique potential for manufacturing consent, indoctrinating, and controlling access to ideas,17there is particular danger of skewing the political process in favor of the status quo when a government agency decides that the public would be "best served" by hearing only the views of the major parties. Ultimately, the "nature of the forum" is compatible with expressive activity by all three candidates because of the political and historical importance of independent parties in electoral campaigns. Independent and third party candidates have long been gadflies, challengers, and question-raisers. This Court has noted that "[h]istorically political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the mainstream," Anderson v. Celebreeze, 460 U.S. 780, 794 (1983); and that "[a]ll political ideas cannot and should not be channeled into the programs of the two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted." Sweezy v. New Hampshire, 354 U.S. at 250-51. This process of challenging the comfortable views of the major parties and forcing mainstream candidates to confront questions that they might otherwise ignore is critical to the process of peaceful social change. Third parties have a unique capacity "to affect the content and range of political discourse, and ultimately public policy, by raising issues and options that the two major parties have ignored." Rosenstone, et al., THIRD PARTIES IN AMERICA at 8. History thus belies any notion that a ballot-qualified candidate's relative lack of immediate electoral "viability" makes his participation in a government-sponsored debate "incompatible" with the nature of the forum.18 As this Court has often recognized, political campaign speech is at the heart of the First Amendment. See, e.g., Buckley v. Valeo, 424 U.S. at 14-15; Mills v. Alabama, 384 U.S. 214, 218 (1966)("a major purpose" of First Amendment "was to protect the free discussion of governmental affairs , . . . of course includ[ing] discussions of candidates"). "In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation." McIntyre v. Ohio Elections Comm'n, 514 U.S. , , 115 S.Ct. 1511, 1519 (1995). AETN's debate program was a limited public forum most fundamentally because at the very heart of our democracy is the principle that all ballot-qualified candidates for political office should be heard, and therefore that a government broadcaster cannot close a campaign debate to those aspirants whom it deems unsuitable, or whose ideas it thinks most voters will not take seriously. III. REGARDLESS OF THE NATURE OF THE FORUM CREATED BY AETN, ITS EXCLUSION OF FORBES WAS UNCONSTITUTIONALLY VIEWPOINT-BASED AND NOT REASONABLY RELATED TO THE PURPOSE OF THE DEBATEII. As PerryEducational Ass'n, Cornelius and, mostly recently, Rosenberger have made clear, even when a forum for citizen speech is "nonpublic," a government decision to deny access must be both "reasonable in light of the purpose served by the forum" and "viewpoint-neutral." Cornelius, 473 U.S. at 806. AETN's decision to exclude Forbes was neither. Since the televised debate was at the very least a "nonpublic forum" for ballot-qualified candidates, the exclusion of Forbes was unconstitutional regardless of how the Court ultimately characterizes the debate for purposes of forum analysis. A. Deciding That a Ballot-Qualified Candidate Is Not Viable Or That The Public Will Be "Best Served" By Excluding Him From A Debate Is Viewpoint Discrimination. This Court in Rosenberger held that a public university's denial of student activity funding to a publication that promoted a "religious perspective" was unconstitutionally viewpoint-based. 115 S.Ct. at 2518. The Court rejected a narrowly "bipolar" definition of viewpoint discrimination in favor of a more realistic understanding that public debate is by nature "complex and multi-faceted," and that discrimination against whole categories of ideas can "skew" that debate "in multiple ways." Id. See alsoLamb's Chapel v. Center Moriches, 508 U.S. at 390-91. The Rosenberger ruling is consistent with numerous precedents condemning discrimination against ideas or speakers because they are deemed "dangerous," unpopular, or controversial. See, e.g., McIntyre v. Ohio Elections Comm'n, 115 S.Ct. at 1519 (controversial political viewpoints are "the essence of First Amendment expression"); Texas v. Johnson, 491 U.S. 397, 414 (1989)(government may not prohibit expression of ideas simply because they are disagreeable); Consolidated Edison v. Public Service Comm'n, 447 U.S. 530, 537-38 (1980)(rejecting argument that government can constitutionally restrict both sides on "controversial issues of public policy"; "[t]o allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth"); Regan v. Taxation With Representation, 461 U.S. 540, 548 (1983)(government may not discriminate in subsidy or benefit programs "in such a way as to `[aim] at the suppression of dangerous ideas'")(quoting Cammarano v. United States, 358 U.S. 498, 513 (1959), and Speiser v. Randall, 357 U.S. 513, 519 (1958)).19 The Eighth Circuit thus understood the concept of viewpoint discrimination too narrowly. Viewpoint discrimination occurs not only when a government agency acts, in a "bipolar" sense, out of hostility to a particular point of view, but when it disfavors a minority perspective on a given subject because it is unpopular, marginal, controversial, or otherwise not deemed to "best serve" the viewing public. As Judge Clark observed in Chandler, excluding minor party candidates based on judgments about the best interests of the voters amounts to viewpoint discrimination because it derives from a belief that "the viewpoints of the Libertarians [are] less valuable than those of the Democrats and Republicans." 917 F.2d at 491-92 (dissenting opinion). So here, as the Brief Amici Curiae of the States of California, et al., in fact acknowledges, excluding Forbes "convey[ed] the message" of the government that his candidacy was not worthy of attention. AETN's disqualification of Forbes was viewpoint discriminatory because it arose from a bias favoring the status quo, valuing major over minor party candidates and ideas, and devaluing the uninhibited and wide-ranging political debate that the First Amendment contemplates. B. Excluding Forbes was Unreasonable in Light of the Forum's Purpose. AETN's decision to exclude Forbes based on its judgment that he was not a viable candidate, and that the public would not be "best served" by hearing his views, was also unreasonable in light of the purpose of a televised debate. As noted above, judgments about a candidate's viability or likelihood of success too often become self-fulfilling prophecies. Moreover, minor party candidates raise issues that the more mainstream candidates would otherwise ignore. See Point II, supra. Thus, the fundamental purposes of a political debate among qualified candidates are ill-served when government excludes those holding opinions that are considered controversial, unpopular, or radical. 20 Forbes' exclusion was particularly unreasonable in light of AETN's own policy commitment to "further the goals of a democratic society by enhancing public access to the full range of ideas and viewpoints required for citizens/voters to make informed judgments about the issues of our time." Cert.App. 100a (emphasis added). The network violated this provision of its own Programming Policy when it took it upon itself to decide that the voters were "best served" by not hearing the views of one of the contest's ballot-qualified candidates. Judged by its own standards, therefore, AETN's decision was unreasonable. The Court of Appeals for the Fourth Circuit observed in Multimedia Publications v. Greenville-Spartanburg Airport, 991 F.2d 154, 159 (4th Cir. 1993), that the reasonableness of speech restrictions in a nonpublic forum should be scrutinized with some care because "protected First Amendment activity" is at stake. The court accordingly struck down a local airport's ban on newsracks because none of the reasons asserted to support it was persuasive. AETN's paternalistic judgment that it knew what was "best" for the voters of the Third District is equally unpersuasive, and was as unreasonable in relation to the purpose of a campaign debate as was the Greenville-Spartanburg Airport's newsrack ban in Multimedia or, for that matter, the Los Angeles Airport's decision to prohibit all First Amendment activity in Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987). The court of appeals in this case accurately summarized the unreasonableness of AETN's action: AETN itself characterizes the criteria it used as . . . "essentially subjective" . . . . In a sense, the State of Arkansas had already, by statute, defined political viability. Mr. Forbes had gathered enough signatures to appear on the ballot. So far as the law was concerned, he had equal status with the Republican . . . and Democratic nominee. Whether he was viable was, ultimately, a judgment to be made by the people of the Third Congressional District, not by officials of the government in charge of channels of communication . . . . The question of political viability is, indeed, so subjective, so arguable, so susceptible of variation in individual opinion, as to provide no secure basis for the exercise of governmental power consistent with the First Amendment. Forbes II, 93 F.3d at 504-05. AETN and its amici make exaggerated claims that the sky will fall on all editorial discretion for all noncommercial broadcasters if the Eighth Circuit's judgment is affirmed. But invalidating AETN's decision to exclude Forbes from its televised campaign debate will not interfere with the network's journalistic control over the great bulk of its programming, will have no effect at all on the nongovernmental press, and represents a constitutionally proper balance between the editorial needs of government broadcasters and the First Amendment rights of the public and of nonmainstream candidates to an "uninhibited, robust, and wide-open" exchange of political views in a government-sponsored forum. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). CONCLUSION For the reasons stated above, the judgment of the court of appeals should be affirmed. Respectfully submitted, Marjorie Heins(CounselofRecord)Steven R. ShapiroAmerican Civil Liberties Union Foundation125 Broad StreetNew York, New York 10004 Dated: June 27, 1997

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